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Ninth Circuit:
First Amendment Bars Liability of Persons Who Orchestrated Picketing From Abroad
Majority
Reverses Judgment Under California’s Civil Anti-Stalking Statute, Finding
Conduct Protected; Dissenter Says Persons With No
Connection to U.S. Not Entitled to Constitutional Protections
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals, in a 2-1 decision, yesterday reversed a cumulative $2.2 million judgment under California’s civil anti-stalking law against two brothers who are residents of Australia because their extraterritorial conduct, including organizing picketing and leafletting in Los Angeles assailing the plaintiffs, film producer Rodric David and Thunder Studios, Inc, is protected by the First Amendment.
Circuit Judge Kenneth K. Lee dissented, maintaining that “the First Amendment does not extend to foreign aliens without substantial voluntary connections to the United States.”
Winning the reversal are Tarek “Tony” Kazal and Adam Kazal. The brothers orchestrated a campaign to publicize their contention that David, an Australian citizen and a former business partner of Tony Kazal and a third brother (not found liable for stalking), had committed misdeeds in connection with an enterprise headquartered in the United Arab Emirates.
Leaflets and signs depicted David—a producer of the movies “Sweetwater” and “Paradise Cove”—as a “corporate thief” and a “fraudster” who “robbed his business partners of $180 million.” Picketing took place near Thunder Studios, which David founded and runs, and Thunder employers were sent emails denigrating David.
A jury in the courtroom of U.S. District Court Judge André Birotte Jr. of the Central District of California found them liable under California Civil Code §1708.7, and assessed damages against each at $100,000 in actual damages and $1 million in punitive damages. (It also turned in a $2,600 verdict against the third brother, Charif Kazal, for infringing Thunder’s copyright on photographs.)
California Statute
Sec. §1708.7 requires establishing “a pattern of conduct the intent of which was to follow, alarm, or harass the plaintiff,” as the result of which “the plaintiff reasonably feared for his or her safety, or the safety of an immediate family member.” Where the violation of a restraining order is not involved, it must be shown that the defendant “made a credible threat” calculated to cause such apprehension, and persisted notwithstanding a demand to cease and desist.
It specifies:
“This section shall not be construed to impair any constitutionally protected activity, including, but not limited to, speech, protest, and assembly.”
Majority Opinion
Circuit Judge William A. Fletcher wrote the opinion reversing the judgment. He was joined by District Court Judge Carol Bagley Amon of the Eastern District of New York, sitting by designation.
“A threshold question is whether the First Amendment applies to the Kazals’ conduct, Fletcher said.
That the defendants were outside the U.S. at all relevant times, he declared, is not determinative. The First Amendment, he wrote, “protects speech for the sake of both the speaker and the recipient,” and pointed out that the recipients of the Kazals’ “speech and speech-related conduct were in California.”
Fletcher added that “[a]bsent national security concerns not present in this case, the First Amendment right to receive information includes the right to receive information from outside the United States.”
‘True Threat’
While Birotte found that a reasonable jury could discern a “true threat” inherent in the utterances in issue, not protected by the First Amendment, Fletcher viewed it otherwise.
On independent review of the constitutional facts, we conclude that their conduct did not constitute a true threat,” he announced. “We therefore conclude that the Kazals’ conduct was protected under the First Amendment and was ‘constitutionally protected activity’ excluded from coverage under California’s stalking statute.”
Fletcher explained:
“The protests Tony organized in Los Angeles alerted the public to David’s alleged misdeeds and encouraged people to ‘read the full story’ on the Kazals’ website. A reasonable speaker could not conclude that David would understand these communications to threaten anything more than a continuation of this campaign to provide their side of the story. Nor is there any evidence that Tony subjectively intended to threaten violence. Tony wrote in an email to his investigator that he intended to ‘screw with’ David. In context, this did not show an ‘intent to commit an act of unlawful violence.’ ”
Lee’s Dissent
Lee said in his dissent:
“The First Amendment protects the good, the bad, and the ugly. As the defendants admit, their conduct bordered on the bad and unleashed the ugly. I largely agree with the majority’s excellent opinion that the First Amendment protects even such reprehensible conduct. But I do not believe that the First Amendment—under its original public meaning—extends to foreigners who lack substantial voluntary connection to this country. The Kazal brothers apparently have no connection to the United States, and they should be unable to exploit the First Amendment as a shield and a sword against those who live here.” After quoting from the Federalist Papers, Lee wrote:
“One thing is clear from the Founding era debates: An individual, at the very least, had to have some connection to the United States—whether it be presence on our soil or some form of implicit allegiance to this nation—to benefit from our constitutional rights. The Supreme Court over the decades has repeatedly reaffirmed this extra-territorial limitation to constitutional rights.”
Supreme Court Opinion
Citing Agency for International Development, v. Alliance for Open Society International, Inc., Lee said:
“Just last year, the Supreme Court again declared that ‘it is long settled as a matter of American constitutional law that foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution.’ ”
He went on to observe that “the original public meaning of ‘the people’—as used in the First Amendment and other provisions in the Constitution—underscores that an individual must have sufficient voluntary connection to the United States to assert those constitutional rights.”
Not only were the Kazals were not present in the United States when they directed the activities of which the plaintiffs complained, he said, but “it is not clear from the record if the Kazals have even ever set foot on American soil.” He noted that Adam Kazal “testified that he has never visited California.”
Lee commented:
“Although our Constitution serves as the inspiration for many freedoms enjoyed by people around the world, it does not guarantee these rights to foreigners outside our borders who have no voluntary connection to the United States. Far from a defect, the overwhelming historical evidence suggests that this is by design. The Kazal brothers, who are in no way moored to the United States, cannot shield themselves under The cover of The First Amendment.”
The case is Thunder Studios v. Kazal, 19-55413.
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